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Administrative Law 1

David Scrimshaw’s Summary for

CML2212AAdmin Law

Fall 2004

based on the lectures ofProf. Nicholas McHaffie

and supplementary materials

Not only must justice be done, justice must be seen to be done.

Look for: Undermining public confidence

Sopinka in SEPQA v. Canada (CHRC)1989 SCC

Both the rules of natural justice and the duty of fairness are variable standards. Their content will depend on the circumstances of the case, the statutory provisions and the nature of the matter to be decided.

Disclaimer: I make lots of mistakes Fairness...............................................................2

Judicial/Quasi-Judicial 2History 2Threshold 3

Content of the Duty of Fairness........................5Hierarchy of the Law.........................................6Bias and Impartiality.........................................7

Independence 10Hearings & the Constitution 12Hearings and the SPPA 15Notice 16Public Access 17Disclosure 18Oral Hearing 20Representation by counsel 22Cross-Examination 24Reasons for Decision 25Legitimate Expectations 27Emergencies 29Effect of Breach of Proc Requirements 29Waiver 30

Substantive Issues.............................................31Jurisdiction 31Review of Exercise of Discretion 35

Remedies...........................................................38Appeals 38Judicial Review – the Prerogative Writs 38Statutory Judicial Review 41Standing 44Standard of Review 46

Damages............................................................51Discretion of Courts.........................................52

Collateral Attack 53Issue Estoppel 54Abuse of Process 55

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2 Administrative Law

FairnessJudicial/Quasi-Judicial

Nicholson v. Haldimand-Norfolk Reg. Board of Comms of Police1978 SCC

Constable terminated

without notice before 18 months

is up

quasi-judicial: the rules of natural justice run, andadministrative or executive field: general duty of fairnessnatural justice, duty of fairness: both flexible, basically

synonymous

Minister of National Revenue v. Coopers and Lybrand1978 SCC

judicial or quasi-judicial:

SPPA 3(1) hearing;

QC Charter

(1) Is there anything in the language … which suggests that a hearing is contemplated before a decision is reached?

(2) Are rights and obligations of persons afffected directly or indirectly by the decision?

(3) Is the adversary process involved? (4) Is there an obligation to apply substantive rules to a

specific case?

HistoryCalgary Power Ltd. v. Copithorne1958 SCC

Super-added Judicial Duty

No hearing when right of way expropriated

In determining whether or not a body or an individual is exercising judicial or quasi-judicial duties, it is necessary to examine the defined scope of its functions and then to determine whether or not there is imposed a duty to act judicially. In the case at bar,… no true contest between Calgary Power

and plaintiff to be decided by the Minister.

Ridge v Baldwin 1963 UK HL

Judicial character can

be inferred

Without the judicial character of the duty superadded in legislation it, it can still be inferred from the nature of the duty itself.

a decision given without regard to the principles of natural justice is void

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http://www.hku.hk/law/conlawhk/sourcebook/admlawcases/ridgebaldwin.htm


Threshold

Knight v. Indian Head School Division no. 191990 SCC

Director of Education fired without cause

L’Heureux-Dubé

The duty to act fairly stems from the fact that the employer is a public body whose powers are derived from statute and must be exercised according to the rules of administrative law.

The existence of a general duty of fairness depends on:

(i) the nature of the decision

No duty of fairness: legislative and general preliminary nature

Duty of fairness: administrative and specific final

(ii) the relationship between that body and the individual; and

Power Imbalance KeyEmployment context:

1) Master and Servant: no duty2) Office Held at Pleasure: duty {after the giving of reasons

and the granting of a hearing, the employer’s mere displeasure is still justification enough to validly terminate the employment.}

3) Except for cause: dutyOffice? “Strong statutory flavour”

(iii) the effect on the individual’s rights

There is a right to procedural fairness only if the decision is a significant one and has an important impact on the individual.

Loss of employment against the office holder’s will is such a decision.

Abrogation Statute: express language or necessary implicationContract: explicit or clearly implicit provision to the contrary

Vancouver Island Peace Society v Canada1991 FCC

Legislative not reviewable

certiorari is not for legislative prescriptions“Decisions made by the Governor in Council in matters of

public convenience and general policy are final and not reviewable in legal proceedings. {National Harbours Board Act, R.S.C. 1970, c. N-8, Mr. Justice Dickson}

What constitutes a

legislative decision?

(see Peralta for Admin def’n

p. 37)

discretionary decision; general in its application (usually, but not always); based on the exercise of judgment after assessing factors of

general policy, which lie outside the ambit of typical concerns or

methods of the courts: public interest and public convenience, morality, politics, economics, international obligations, national defence and security, or social, scientific or technical concerns.

A-G of Canada v Inuit Tapirisat of Canada et al

Legislative in natureNo duty of

Legislative in nature: no hearing required, no duty of fairness a function performable in the past by the Legislature and

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http://www.canlii.org/ca/cas/scc/1990/1990scc27.html


1980 SCC

Governor-in-Council makes decision about phone rates

fairness

the subject-matter is not an individual concern or a right unique to the petitioner or appellant.

The fact that the function has been assigned to a tier of agencies does not alter the political science pathology….

Cabinet not immune

If that body has failed to observe a condition precedent to the exercise of that power, the Court can declare that such purported exercise is a nullity

Statute?it is still necessary to examine closely the statutory provision

in question in order to discern whether it makes the decision-maker subject to any rules of procedural fairness.

Nature of the body

The very nature of the body must be taken into account in assessing the technique of review …. The executive branch cannot be deprived of the right to resort to its staff, ….

Bezaire v. Windsor Roman Catholic Separate School Board1992 Ont GD

TriggerThere must be some qualifying circumstance which triggers

the applicability of the duty of fairness. e.g. guidelines and policies premised on public consultation

Re Abel et al. and Director, Penetanguishene Mental Health Centre1979 Ont HCJ

Interlocutory No duty of fairness if not a decision makerDuty if decision is de facto final

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Content of the Duty of Fairness

Baker v. Minister of Citizenship and Immigration1999 SCC

Mother of 4 with mental health problems to be returned to Jamaica;

Notes from Immigration officer show bias

L’Heureux-Dubé

criteria that should be used in determining what procedural rights the duty of fairness requires (not exhaustive)underlying all these factors

Not only must justice be done it must be seen to be done

1. nature of the decision and the process followed

The more resemblance to judicial decision-making, the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness.

2. nature of the statutory scheme

Greater procedural protections will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further

requests cannot be submitted

3. importance of the decision to the affected

the greater its impact, the more stringent the procedural protections that will be mandated.

4. the legitimate expectations of the person challenging the decision

If the claimant has a legitimate expectation thata certain procedure will be followed, this procedure will be

required by the duty of fairness:a certain result will be reached in his or her case, fairness may

require more extensive procedural rights than would otherwise be accorded

[An international treaty doesn’t necessarily give rise to legitimate expectations (but it could)]

5. choices of procedure made by the agency

Important weight must be given to the choice of procedures made by the agency itself and its institutional constraints

Other factors may also be important, particularly when considering aspects of the duty of fairness unrelated to participatory rights.

Values

The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges

made using a fair, impartial, and open process, appropriate to the statutory, institutional and social context of the decision.

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Hierarchy of the LawOcean Port Hotel 2001 SCC

absent a constitutional challenge, a statutory regime prevails over common law principles of natural justice

N. McH RegulationsFor regulations to over-ride common-law duty of fairness

there must be express regulation-making authority to over-ride.

Vancouver Island Peace Society v Canada1993 FCC

Regulation Power

The power to adopt regulations or other legislative enactments necessarily includes the power to clarify, amend or vary those regulations or enactments subsequently, provided, of course, that the power is not exercised in a manner which would contravene the intentions of the legislature.

exempt individual

cases?

Principle that a delegation of general legislative power ought not to be interpreted, unless it expressly so provides, as including authority to exempt individual cases from general regulations – does not appear to be judicially recognized as yet in Canada in relation to regulating authority

Bell Canada v. Canadian Telephone Employees Association2003 SCC Guidelines

guidelines, like all subordinate legislation, are subject to the presumption against retroactivity

any party could challenge a guideline on the basis that it was issued in bad faith or for an improper purpose;

no guideline can purport to override the requirements of procedural fairness that govern the Tribunal

guideline power is constrained: bodies to whom the power to make subordinate legislation has been delegated cannot exceed the power that has been given to [them and [are] subject to strict judicial review

Bertram S. Miller Ltd v The Queen1986 Fed CA

Regulations: Cannot give more power to Minister than the statute

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http://www.lexum.umontreal.ca/csc-scc/en/pub/2003/vol1/html/2003scr1_0884.html

http://www.canlii.org/ca/cas/fct/1993/1993fct10022.html





Bias and ImpartialityRe Energy Probe and Atomic Energy Control Board et al1984 FCA President and shareholder of cable supplier is on board licensing nuke plant

the basic rule nemo judex in causa sua: no person can judge a case in which he or she is party

interests that affect

impartiality

there are many interests other than pecuniary which may affect the impartiality of a decision-maker such as kinship, friendship, partisanship, particular professional or business relationship with one of

the parties, animosity towards someone interested, predetermined mind as to the issue involved, etc.

$: immediate & certain

(see Pearlman for real test)

to operate disqualification, the pecuniary interest ought to be more immediate and certain and the non-pecuniary interest must give rise to very substantial grounds for apprehending lack of objectivity.

Committee for Justice and Liberty et al v National Energy Board1976 SCC

Marshall Crowe led Study Group; now he’s approving the licence

Degrandpre (Dissent) The

Gold Standard test:

the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. . .

[T]hat test is “what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly?

Other tests

I can see no real difference between the expressions found in the decided cases, be they “reasonable apprehension of bias”, “reasonable suspicion of bias”, or “real likelihood of bias”. The grounds for this apprehension must, however, be substantial and I entirely agree with the Federal Court of Appeal which refused to accept the suggestion that the test be related to the “very sensitive or scrupulous conscience”.

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Old St. Boniface Residents Assn. Inc. v. Winnipeg (City)1990 SCCCouncillor Savoie already made up his mind?

conflict of interest

Where such an interest is found, both at common law and by statute, a member of Council is disqualified if the interest is so related to the exercise of public duty that a reasonably well-informed person would conclude that the interest might influence the exercise of that duty.

Biased Councillors?

The party alleging disqualifying bias must establish that there is a prejudgment of the matter, in fact, to the extent that any representations at variance with the view, which has been adopted, would be futile.

Statements

Statements by individual members of Council while they may very well give rise to an appearance of bias will not satisfy the test unless the court concludes that they are the expression of a final opinion on the matter, which cannot be dislodged.

Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities)1992 SCC

“I want the company hauled in here – all them fat cats with their big pensions …”

adjudicative Boards:

Standard of a court: no reasonable apprehension of bias with regard to their decision.

boards with elected

membersa pre-judgment of the matter to such an extent that any

representations to the contrary would be futile.policy boards

Closed mind example

Should a commissioner state that, no matter what evidence might be disclosed as a result of the investigation, his or her position would not change, this would indicate a closed mind

Investigation Hearing

At the investigative stage, the “closed mind” test was applicable.

Once matters proceeded to a hearing: there could be no reasonable apprehension of bias.


Taint of Bias

the duty to act fairly and therefore in a manner that does not give rise to a reasonable apprehension of bias applies to all immigration officers who play a significant role in the making of decisions, whether they are subordinate reviewing officers, or those who make the final decision

Open Mind requirement

immigration decisions demand sensitivity and understanding by those making them. They require a recognition of diversity, an understanding of others, and an openness to difference.

Pearlman v. Manitoba Law Society Judicial Committee[1991] SCC

$“Would the perceived pecuniary interest that the members of

the Judicial Committee are alleged to have in a finding of guilt . . . create an apprehension in a reasonably well-informed person that the Judicial Committee might not decide fairly?”

personal and distinct interest?

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Law Society of Upper Canada v. French1974 SCC Can benchers who decided case sit on convocation for “appeal”

Adjudicator at Appeal?

Laskin (dissenting)

An adjudicator may not properly sit in further proceedings based upon his adjudication any more than can an accuser sit as a member of the tribunal hearing his accusation, unless authorized by statute

disqualification should [not] rest on whether there is or is not an appeal in the strict sense. The more material question is whether there has been an adjudication rather than an investigation merely of the facts

Spence(majority)

No disagreement with the above, but the Statute allows duplication Convocation makes the disciplinary decision, they are not

hearing an appeal

Brosseau v. Alberta Securities Commission1989 SCCCan SC Chair sit on investigation and adjudication panels?

Investigator Adjudicator

Overlapping of duties

L’Heureux-Dubé

general principle: acting as both investigator and adjudicator in the same case is not permitted because the taint of bias would destroy the integrity of proceedings conducted in such a manner

Except where authorized by statuteIf a certain degree of overlapping of functions is authorized

by statute, then, to the extent that it is authorized, it will not generally be subject to the doctrine of “reasonable apprehension of bias” per se

Matsqui Indian Band v. CP1995 SCC

Institutional impartiality

will there be a reasonable apprehension of bias in the mind of a fully informed person in a substantial number of cases?

2747-3174 Québec Inc. v. Quebec (Régie des permis d’alcool)1996 SCCprosecutors advise directors on outcomesdirector orders hearing

Institutional Bias

a multifunctional structure does not in itself always raise an apprehension of bias.

Although an overlapping of functions is not always a ground for concern, it must nevertheless not result in excessively close relations among employees involved in different stages of the process

Prosecutors Adjudicating?

prosecuting counsel must in no circumstances be in a position to participate in the adjudication process. The functions of prosecutor and adjudicator cannot be exercised together in this manner.

Panelist orders hearing?

the decision to hold a hearing does not amount to a prior determination of the validity of the allegations

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Independence

Sethi v. Canada (Min of E&I)1988 FCC CA Government is about to fire all the IAB members and wants to deport Sethi

Govt Bill It is sheer speculation to assume that any bill before Parliament will proceed to enactment and proclamation

Chilling Effect

A more profound reason for rejecting an announcement of the government’s intentions as to a tribunal as a basis for holding that it cannot continue to function is found in the chilling effect that would have on the democratic process

No probability

the mere expression of a government’s intentions toward an administrative tribunal cannot give rise to a probability that the tribunal will react to those intentions in a particular way relative to the decisions it is required to make

“Clueless” – N. McH

no informed, right-minded person would conclude that members of the Board would, in fact, please the government if they decided that disagreement unfairly


Can band members and non-members who serve at the pleasure of the band sit on tax appeal boards?

Lamer & Cory

Institutional Independence –

The Valente Factors

Appearance of independence must be established where the tribunal is functioning as an adjudicative body settling disputes and determining the rights of parties:

1. security of tenure: removable only for cause, subject to review, full opportunity to be heard; until an age of retirement, for a fixed term, or for a specific adjudicative task (Decision to extend within the tribunal – Bell Canada)

2. security of remuneration [right to salary and pension established by law, not subject to arbitrary interference by the executive in a manner that could affect judicial independence] and

3. administrative control (sittings, timing, who sits, etc.)

Level of Independence

The requisite level of institutional independence will depend on the nature of the tribunal, the interests at stake, and other indices of independence such as oaths of office.

Strict Application: high level of independence; e.g. security of the person

Flexible approach: e.g. property taxes (but still must be there)

Oath

one factor to take into account in assessing the independence of an administrative tribunal. However, the fact that an oath is taken cannot act as a substitute for financial security or security of tenure.

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Ocean Port Hotel Ltd. v. BC (GM, Liquor Control) 2001 SCC

The CharterWhile tribunals may sometimes attract Charter

requirements of independence, as a general rule they do not.

Legislature’s intent for

independence

the degree of independence required of a particular government decision maker or tribunal is determined by its enabling statute. It is the legislature or Parliament that determines the degree of independence required of tribunal members. The statute must be construed as a whole to determine the degree of independence the legislature intended.

Overlapping functions?

The overlapping of investigative, prosecutorial and adjudicative functions in a single agency is frequently necessary for a tribunal to effectively perform its intended role

it is always open to the legislature to authorize an overlapping of functions that would otherwise contravene the rule against bias {absent constitutional constraints (s. 7)}

Bell Canada v. Canadian Telephone Employees Association2003 SCC

Bill of Rights

2. Every law of Canada shall, unless it is expressly declared that it shall operate notwithstanding the Bill of Rights, shall be construed so as to (Abbreviated)

(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;

Independence & Impartiality

what would an informed person, viewing the matter realistically and practically, and having thought the matter through, conclude?

High Degree of Independence

Factors

1) the Tribunal functions in much the same way as a court 2) interests affected, e.g.: dignity interests of the complainant, the interest of the public in eradicating discrimination, and the reputation of the party that is alleged to have engaged in

discriminatory practices

Guidelines Guideline power doesn’t undermine independence or impartiality

Imperial Oil Ltd. v. Quebec (Min of the Environment)2003 SCC

Is a Minister biased if facing

lawsuit?No, it’s not his money

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http://laws.justice.gc.ca/en/C-12.3/28708.html




Hearings & the Constitution

Singh v. Minister of E&I1985 SCC

SCC splits 3-3

BoR

Beetz J.

the Canadian Bill of Rights retains all its force and effect. “fundamental justice” will not require an oral hearing in

every case,Oral Hearing required “where life or liberty may depend on

findings of fact and credibility”

Charter s. 7 & s. 1

Wilson J.

where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing

the “right” which is articulated in s. 7 has three elements: life, liberty and security of the person….it is incumbent upon the Court to give meaning to each of the elements, life, liberty and security of the person, which make up the “right” contained in s. 7

“security of the person” must encompass freedom from the threat of physical punishment or suffering as well as freedom from such punishment itself.

S. 1: the guarantees of the Charter would be illusory if they could be ignored because it was administratively convenient

The term “everyone” in s. 7 includes every person physically present in Canada (not entirely settled, McH)

The Prostitution Reference1990 SCC

Lamer J.

s. 7 is not about

the Charter does not concern itself with economic rights.The rights under s. 7 do not extend to the right to exercise

their chosen professionNot: “dignity, self-worth and emotional well-being” (would

undercut freedoms such as freedom of religion and conscience or freedom of expression) (confirmed in Blencoe)

What s. 7 is

s. 7 is implicated when the state: by resorting to the justice system, restricts an individual’s

physical liberty in any circumstances. restricts individuals’ security of the person by interfering

with, or removing from them, control over their physical or mental integrity; and

either directly or through its agents, restricts certain privileges or liberties by using the threat of punishment in cases of non-compliance.

Blencoe v. BC (HRC)2000 SCC 44

Not just criminal law

Section 7 of the Charter can extend beyond the sphere of criminal law, at least where there is state action which directly engages the justice system and its administration

Delay There is no constitutional right outside the criminal context to be “tried” within a reasonable time

To get a stay of proceedings as an abuse of process at common

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law: “There must be proof of significant prejudice which results from an unacceptable delay.”

Lebel in Minority: Administrative delay that is determined to be unreasonable based on its length, its causes, and its effects is abusive and contrary to administrative law principles

Contextual Analysis for Delay(Not mentioned by McH)

The determination of whether a delay is inordinate is not based on the length of the delay alone, but on contextual factors, including

1. the nature of the case and its complexity, 2. the purpose and nature of the proceedings, and 3. whether the respondent contributed to the delay or waived

the delay.

s. 7 Liberty

The liberty interest protected by s. 7 is no longer restricted to mere freedom from physical restraint.

“Liberty” is engaged where state compulsions or prohibitions affect important and fundamental life choices. The s. 7 liberty interest protects an individual’s personal autonomy. - decisions of fundamental importance free from state interference.

Such personal autonomy, however, is not synonymous with unconstrained freedom.

security of the person

The right to security of the person guaranteed by s. 7 protects the psychological integrity of an individual. However, in order for this right to be triggered, the psychological harm must result from the actions of the state and it must be serious.

Canada (Min of E&I) v. Chiarelli1992 SCC

Sopinka J. for the court

s. 7 Deportation

Deportation for convictions for criminal activity is not contrary to s. 7

Contextual approach

under a contextual approach, constitutional standards developed in the criminal context could not automatically be applied to regulatory offences

no unqualified right to remain in Canada if not a Citizen

Factors

Key – Conviction had every procedural defenceMaybe a non-required hearing doesn’t need Duty of Fairness

protectionSecurity of State confidentiality requirements allow PoFJ

exemptionDehghani v. Canada (Min of E&I)1993 SCCNo counsel at airport interview

Charter ss 8-14 when the plaintiff’s complaint falls squarely within a highly specific guarantee in ss. 8 to 14, then the Charter challenge must be determined according to that section, rather than under s. 7. {R. v. Pearson, [1992] 3 S.C.R. 665}

there may be residual protection of the right to counsel under s. 7 in situations which do not fall within the parameters of

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Iacobucci J.

“arrest or detention” in s. 10(b).

Not the most favourable

s. 7 of the Charter entitles the [accused] to a fair hearing; it does not entitle him to the most favourable procedures that could possibly be imagined {La Forest J. in R. v. Lyons}

at Pre-inquiry?at the pre-inquiry or pre-hearing stage of the refugee claim

determination process: the principles of fundamental justice do not require that the appellant be provided with counsel.

Re Howard1985 Fed CA

Charter s. 7the fact that liberty and the security of the person are

lumped together with life itself shows that the importance of the right to them is in the same class with that of the right to life itself

Procedural Standards for s. 7

not necessarily the most sophisticated or elaborate or perfect procedure imaginable but only that of a procedure that is fundamentally just.

What that may require will no doubt vary …Features of such a procedure: An unbiased tribunal, knowledge by the person whose life, liberty or security is in

jeopardy of the case to be answered, a fair opportunity to answer and a decision reached on the basis of the material in support of

the case and the answer made to it

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Hearings and the SPPA

SPPAR.S.O. 1990

s. 3Application of Act

3. (1) Subject to subsection (2), this Act applies to a proceeding by a tribunal in the exercise of a statutory power of decision conferred by or under an Act of the Legislature, where the tribunal is required by … by law to hold or to afford .. a hearing before .. decision.

Where Act does not apply

(2) This Act does not apply to a proceeding,(a) before the Assembly or any committee of the Assembly;(b) in or before [the courts];(c) to which the Rules of Civil Procedure apply;(d) before an arbitrator …;(e) at a coroner’s inquest;(f) of a commission appointed under the Public Inquiries Act;(g) of one or more persons required to make an investigation and to

make a report, …where the report is for the information or advice of the person to whom it is made and does not in any way legally bind or limit that person… or

(h) of a tribunal empowered to make regulations, rules or by-laws in so far as its power to make [them] is concerned.

s. 15 EvidenceHearsay allowed

15. (1)… a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court, (a) any oral testimony; and (b) any document or other thing, relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.

s. 21Adjourn-ments

21. A hearing may be adjourned from time to time by a tribunal of its own motion or where it is shown to the satisfaction of the tribunal that the adjournment is required to permit an adequate hearing to be held.

25.0.1Control of process

25.0.1 A tribunal has the power to determine its own procedures and practices and may for that purpose,

(a) make orders with respect to the procedures and practices that apply in any particular proceeding; and

(b) establish rules under section 25.1.

25.1Rules

25.1 (1) A tribunal may make rules governing the practice and procedure before it.

(2) The rules may be of general or particular application.(3) The rules shall be consistent with this Act and with [others](4) …available to the public in English and in French.(5) …not regulations as defined in the Regulations Act.(6) The power conferred by this section is in addition to any power to

adopt rules that the tribunal may have under another Act.

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http://www.e-laws.gov.on.ca/DBLaws/Statutes/English/90s22_e.htm


Notice

Purposive Examination

Reasons for Notice

1. To know a decision is to be made2. Substance of decision3. Basis on which decision will be made

SPPAR.S.O. 1990

s. 6Reasonable Notice of hearing

6. (1) The parties to a proceeding shall be given reasonable notice of the hearing by the tribunal.

(2) Statutory authority A notice of a hearing shall include a reference to the statutory authority …

(3) Oral Hearing (a) a statement of the time, place and purpose of the hearing; and (b) if the party notified does not attend…

(4) Written Hearing (a) date and purpose of the hearing, and details…(b) a statement that the hearing shall not be held as a written hearing if the party satisfies the tribunal that there is good reason ….(c) if the party notified neither acts ……

(5) Electronic Hearing…

Effect of non-attendance at hearing after due notice

7. (1) Where notice of an oral hearing has been given to a party … and the party does not attend at the hearing, the tribunal may proceed in the absence of the party and the party is not entitled to any further notice in the proceeding (Same for (2) Written, (3) Electronic)

s. 24 (1) Public Advertisement for Numerous parties, etc.

24. (1) Where a tribunal is of the opinion that because the parties to any proceeding before it are so numerous or for any other reason, it is impracticable, (a) to give notice of the hearing; to all or any of the parties individually,

the tribunal may, instead of doing so, cause reasonable notice of the hearing or of its decision to be given to such parties by public advertisement or otherwise as the tribunal may direct.

Re Central Ontario Coalition and Ontario Hydro1984 Ont HCJHydro announces hearing for power line in South Western Ontario

Notice Required?

Even in the absence of express statutory requirement it is trite law that where property rights or interests may be affected notice must be given

Form and content

where the form or content of notice is not laid down it must be reasonable in the sense that it conveys the real intentions of the giver and enables the person to whom it is directed to know what he must meet

in the absence of a statutory direction as to form and content a notice given must be reasonable in the circumstances.

no notice = no jurisdiction

An error of this magnitude in the first step that the Board must take to establish its jurisdiction seems to me to be unarguably as fundamental an error as the Board -- or any board -- could make

a failure of natural justice amounts to jurisdictional error

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Public Access

SPPAR.S.O. 1990

s. 9. (1) Hearings to be public, exceptions

9. (1) An oral hearing shall be open to the public except where the tribunal is of the opinion that,

(a) matters involving public security may be disclosed; or(b) intimate financial or personal matters or other matters may be

disclosed at the hearing of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public

s. 9. (1.1)Written

hearings

(1.1) … members of the public are entitled to reasonable access to the documents submitted, unless the tribunal is of the opinion that clause (1) (a) or (b) applies.

s. 9. (1.2)Electronic

hearings

(1.2) An electronic hearing shall be open to the public unless the tribunal is of the opinion that,

(a) it is not practical to hold the hearing in a manner that is open to the public; or (b) clause (1) (a) or (b) applies

The Charter s. 22. Everyone has the following fundamental freedoms:

b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication

Pacific Press Ltd. v. Canada (Min of E&I) 1991 Fed CAPress excluded from immigration hearing

2(b) onus onus: person seeking to exclude the press.

2(b) Weight

“curtailment of public accessibility can only be justified where there is present the need to protect social values of superordinate importance.” Dickson J. in A-G of Nova Scotia et al. v. MacIntyre, [1982] 1 S.C.R. 175

Judicial or Quasi-Judicial

principle of openness must be deemed to apply to every “exercise of judicial powers,” and therefore even to that of an adjudicator under the Act. (see Coopers & Lybrand p.2)

National Energy Board 1974 Fed Ct

Public hearings?

Legislation that says “hearings… shall be public” calls for “public hearings”.

The word “public” in the context,… means that every member of the public, subject to the qualification that such person has a demonstrable interest in the subject-matter before the Board over and above the public generally, shall have the right to participate in the hearing.

DisclosureSPPARSO 1990

5.4Disclosure

5.4 (1) If the tribunal’s rules made under section 25.1 deal with disclosure, the tribunal may, at any stage of the proceeding before all hearings are complete, make orders for,

(a) the exchange of documents;

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http://laws.justice.gc.ca/en/charter/



(b) the oral or written examination of a party;(c) the exchange of witness statements and reports of expert witnesses;(d) the provision of particulars;(e) any other form of disclosure.Other Acts and regulations (1.1) The tribunal’s power to make

orders for disclosure is subject to any other Act or regulation … Exception, privileged information (2)

s. 8 character,

etc., is in issue

8. Where the good character, propriety of conduct or competence of a party is an issue in a proceeding, the party is entitled to be furnished prior to the hearing with reasonable information of any allegations with respect thereto.

CIBA-Geigy Canada Ltd. v. Canada (Patented Medicine Prices Review Board)1994 Fed CA

Case to Meet

There is no point in the legislature creating a regulatory tribunal if the tribunal is treated as a criminal court. (i.e. Stinchcombe doesn’t necessarily apply)

The obligations concerning disclosure imposed by the doctrine of fairness and natural justice are met if the subject of the inquiry is advised of the case it has to meet and is provided with all the documents that will be relied on.

Economic Regulatory Functions

Law and policy require that some leeway be given an administrative tribunal with economic regulatory functions, if, in pursuing its mandate, the tribunal is required by necessity to receive confidential information.

Factor: Less adversarial than court

Human Rights Context

There would be a duty to disclose

Factors See Knight p. 3

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http://reports.fja.gc.ca/fc/1994/pub/v3/1994fca0291.html


R v Stinchcombe1991 SCC

Common Law and

s. 7

failure to disclose impedes the ability of the accused to make full answer and defence. This common law right has acquired new vigour by virtue of its inclusion in s. 7 of the Canadian Charter of Rights and Freedoms as one of the principles of fundamental justice

general duty“general duty on the part of the Crown to disclose all material it

proposes to use at trial and especially all evidence which may assist the accused even if the Crown does not propose to adduce it”

Discretion

Discretion, extends to such matters as excluding what is clearly irrelevant, withholding the identity of persons to protect them from

harassment or injury, or to enforce the privilege relating to informers.

the timing of disclosure in order to complete an investigation.The discretion of Crown counsel is, reviewable by the trial judge –

based on accused’s right to make full answer and defence.

Unrep?When the accused is unrepresented, Crown counsel should advise

the accused of the right to disclosure and a plea should not be taken unless the trial judge is satisfied that this has been done.

Witnesses measures may be taken to protect the identity of witnesses and informers

Summary Offences?

Case by case: factors above may not apply at all or may apply with less impact in summary conviction offences. Moreover, the content of the right to make full answer and defence in s. 7 of the Charter may be of a more limited nature

Re Abel1979 Ont HCJCriminally insane not given their files

DiscretionThe Board would have a discretion to refuse disclosure where

the reports could cause grievous harm to the administration of the hospital and to the patient.

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Oral Hearing

SPPAR.S.O. 1990

s. 5.1 Written hearingsif rules set

5.1 (1) A tribunal whose rules made under section 25.1 (A tribunal may make rules – note they must have made the rule) deal with written hearings may hold a written hearing in a proceeding.

(2)No written hearing “if a party satisfies the tribunal that there is good reason for not doing so.”

(2.1) Ss (2) does not apply if the only purpose of the hearing is to deal with procedural matters

s. 5.2Electronic hearings

5.2 (1) A tribunal whose rules made under section 25.1 deal with electronic hearings may hold an electronic hearing in a proceeding.

(2) no electronic hearing “if a party satisfies the tribunal that holding an electronic rather than an oral hearing is likely to cause the party significant prejudice.”

(3) Ss (2) does not apply if the only purpose of the hearing is to deal with procedural matters

(4) Participants to be able to hear one another

5.2.1 Combo 5.2.1 A tribunal may, in a proceeding, hold any combination of written, electronic and oral hearings.

Hoffman-LaRoche Ltd. V. Delmar Chemicals Ltd.1965 SCC

s 41(3) Licensing describes no hearing requirement; other procedures in Statute do

in the circumstances of this case, whether he was obligated to do so or not, the Commissioner did cause the respondent to serve the appellant with a copy of the application and affidavit; he did furnish to the appellant ample opportunity to present its case in writing, and the appellant did make written submissions to the Commissioner.

the Commissioner was entitled to set the procedures, and he did so. It was for him to decide whether or not the circumstances required an oral hearing, cross-examination upon affidavits, or oral submissions. In my opinion, his decision not to require any of these things cannot be considered to be a denial of natural justice to the appellant.

Khan v. Ottawa (University of)1997 Ont CA

3 exam books? or 4?

where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing..

Singh v. Minister of E&I1985 SCC

Beetz J.

the Canadian Bill of Rights: “fundamental justice” will not require an oral hearing in every case,

Oral Hearing required “where life or liberty may depend on findings of fact and credibility”

Wilson J.

where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing

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http://www.canlii.org/on/cas/onca/1997/1997onca10370.html



Re Attorney-General of Manitoba et al. and National Energy Board et al.1974 Fed Ct

Only export applicant allowed to make oral presentations and do cross exams

In many instances a hearing need not be an oral one but may be on written representations.

If a tribunal is left by the legislation creating it with an unfettered discretion as to how to proceed, then the tribunal can work out an acceptable procedure that does not include an oral hearing, but even then there may be cases where fairness may dictate an oral hearing.

Public hearings?

Legislation that says “hearings… shall be public” calls for “public hearings”.

The word “public” in the context,… means that every member of the public, subject to the qualification that such person has a demonstrable interest in the subject-matter before the Board over and above the public generally, shall have the right to participate in the hearing.

Hearing requirement

the word “hearing” must have attributed to it the same meaning as it has in a Court of law if the legislation: bestows on the body the attributes of a Court and contemplates the panoply of a full adversary hearing

If it’s a full-fledged hearing

the applicant and the opponents must be treated on an equal footing with no discriminatory advantage being bestowed on one side or the other.

if one side is permitted to give oral evidence the same facility must be afforded to the opponents with the right by both sides to cross-examine the witnesses giving the oral testimony adverse to their respective positions

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Representation by counsel

SPPAR.S.O. 1990

s. 10 Right to counsel

10. A party to a proceeding may be represented by counsel or an agent.

s. 11Rights of witnesses to counsel

11. (1) A witness at an oral or electronic hearing is entitled to be advised by counsel or an agent as to his or her rights but such counsel or agent may take no other part in the hearing without leave of the tribunal.

(2) Where an oral hearing is closed to the public, the counsel or agent for a witness is not entitled to be present except when that witness is giving evidence.

Re Men’s Clothing Manufacturers Association of Ontario et al. and Arthurs et al.1979 Ont HCJ

Harry Arthurs refuses to let company and union be represented by lawyers at arbitration in line with 60 years of such practice (SPPA doesn’t apply to Labour arbitration)

Corporations and Agents

As a general rule…, a party entitled to be represented by an agent before a domestic tribunal, cannot be restricted by the tribunal in the choice of its agent, in the absence of an applicable rule or agreement containing such restriction.

(and if one party gets a lawyer, everyone does)

Right to counsel in arbitration

Cases arising under a statute, constitution or rules of an association: no absolute right to counsel

Where the arbitration arises out of an agreement, one must look at the intention of the parties as it appears

from the words of the agreement and the surrounding circumstances.

If it is clear that the parties intended that representation by counsel be permitted, the arbitrator has no discretion to exclude counsel. {e.g. in a case in which a detailed submission to arbitration had been settled by the lawyers on behalf of the parties}

Industry practice

In an industry in which [it is common for parties to be represented by counsel]… it would be an implied term of the collective agreement that an individual party, i.e., a natural person, would also be entitled as of right to representation by counsel, assuming there was no provision in the collective agreement covering the point

Criteria for requirement

natural justice, requires that the applicants be represented by legal counsel even if the applicants had no absolute right thereto if the factual issues involved in the arbitration are of

considerable age and complexity, and the arbitration will involve questions of law other than those

on which the learned arbitrator gave leave to counsel to file written argument and to present further argument at the conclusion of the hearing.

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Re Irvine et al. and Restrictive Trade Practices Commission et al.1987 SCC

Right to counsel in an investigative process

The extent of the right to counsel and, where counsel is authorized by statute without further directive, the role of such counsel are determined by: The characteristics of the proceeding, the nature of the resulting report and its circulation to the

public, and the penalties which will result when events succeeding the

report are put in train

Investigation v. determination

No Right to Counsel: Where that process is in embryonic form engaged in the gathering of the raw material for further consideration

Right to Counsel: Where the investigation is conducted by a body seized of powers to determine, in a final sense or in the sense that detrimental impact may be suffered by the individual

Dehghani v. Canada (Min of E&I)1993 SCC

Pre-inquiry?at the pre-inquiry or pre-hearing stage of the refugee claim

determination process: the principles of fundamental justice do not require that the appellant be provided with counsel.

Re Howard and Presiding Officer of Inmate Disciplinary Court of Stony Mountain Institution1985 Fed CA

Inmate facing loss of 267 days is denied counsel at hearing

s.7 and Right to Counsel

s. 7 has not created any absolute right to counsel in all such proceedings.

what is required is an opportunity to present the case adequately

whether or not the person has a right to representation by counsel will depend on the circumstances of the case, its nature, its gravity, its complexity, the capacity of the inmate himself to understand the case and

present his defence. The list is not exhaustive.

Matter of rightwhether or not an inmate’s request for representation by

counsel can lawfully be refused is not … a matter of discretion but is a matter of right where … the opportunity to present the case adequately calls for representation by counsel.

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Cross-Examination

Purpose

untested evidence given little weight

Citizen’s right to meet the case against him Clarify sweeping statements Confront inconsistency Impel honesty and precision

SPPAR.S.O. 1990 s. 15

Hearsay allowed

15. (1)… a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court, (a) any oral testimony; and (b) any document or other thing, relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.

Judicial Notice

No need to call evidence of things that are obvious or that everybody knows.

Administrative Tribunals can take judicial notice of facts within their area of specialized knowledge.

Zundel Cannot take judicial notice of facts at the heart of the case.

Re Irvine1987 SCC

Fact Finding?

Fact finding is not determinative of right to cross examination

No free standing right to cross examination

Township of Innisfil v Township of Vespra et al1981 SCCNo cross exam allowed of Minister’s statement

Hearing called for?

where the rights of the citizen are involved and the statute affords him the right to a full hearing, including a hearing of his demonstration of his rights, one would expect to find the clearest statutory curtailment of the citizen’s right to meet the case made against him by cross-examination.

Doubt?

it is not for the appellate Court to withhold such right because in its judgment it is doubtful, or even impossible, in the view of the Court for the appellant to advance its case by such cross-examination. The decision to exercise the right is solely that of the holder of the right.

Re B and Catholic CAS of Metro Toronto1987 Ont HCJ

molester not allowed to cross examine victim

SPPA s. 15 allows hearsay, but doesn’t mean it can be admitted without cross-examination

without cross-examination the admission of the hearsay evidence amounts to a denial of natural justice

National Energy Board et al.1974 Fed Ct

If oral evidencethe applicant and the opponents must be treated on an equal

footing with no discriminatory advantage being bestowed on one side or the other.

if one side is permitted to give oral evidence the same facility must be afforded to the opponents with the right by both sides to cross-examine the witnesses giving the oral testimony adverse to their respective positions

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Reasons for Decision

Why

“Justice must be seen to be done” (Sheppard)

Ensure decision made by the right people for the right reasons

Improve decision-making Allow assessment of grounds for appeal Inform public of the law

Why Notthese may be addressed by form

Efficiency Hinder frankness Lack of expertise with reason drafting

SPPARSO 1990

16.1(3) Interim An interim decision or order need not be accompanied by reasons.

17. (1) FinalA tribunal shall give its final decision and order, if any, in any

proceeding in writing and shall give reasons in writing therefor if requested by a party

24. (2) Multiple Parties

Contents of notice (2) A notice of a decision given by a tribunal under clause (1) (b) shall inform the parties of the place where copies of the decision and the reasons therefor, if reasons were given, may be obtained.

R. v. Sheppard2002 SCCGirlfriend accuses ex of stealing windows with no other evidence and no reasons, TJ convicts

Functional Need to know

2. The question is whether, in all the circumstances, the functional need to know has been met.

Consequences

5. functional needs not satisfied: the appellate court may conclude: it is a case of unreasonable verdict, an error of law, or a miscarriage of justice depending on the circumstances of the case and the nature and importance of the trial decision being rendered.

unsettled law or contradictory evidence

6. Reasons acquire particular importance when a trial judge is called upon to address troublesome principles of unsettled law, or to resolve confused and contradictory evidence on a key issue, unless apparent from the record

No standard of perfection

7. …The trial judge is not held to some abstract standard of perfection.

Sufficient to serve the purpose

8. The trial judge’s duty is satisfied by reasons which are sufficient to serve the purpose for which the duty is imposed, i.e., a decision which, having regard to the particular circumstances of the case, is reasonably intelligible to the parties and provides the basis for meaningful appellate review

deficient reasons in original?

10. [If] the appeal court considers itself able to do so, the appeal court’s explanation in its own reasons is sufficient.

There is no need in that case for a new trial.

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Reasons?

some form of reasons should be required where the decision has important significance for the

individual, when there is a statutory right of appeal, or in other circumstances

just notes?

Implicit adoption of lower reasons in absence of other reasonsAccepting such documentation as sufficient …recognizes that,

in the administrative context, this transparency may take place in various ways.

Khan v. College of Physicians & Surgeons of Ontario1992 Ont CA

Counsel for the committee helps with reason drafting

Whose reasons?

The reasons for a decision made by the Committee must be those of the Committee

involvement of the non-decision-maker in the drafting process Factors

1. The nature of the proceedings, 2. the issues raised in those proceedings, 3. the composition of the tribunal, 4. the terms of the enabling legislation, 5. the support structure available to the tribunal, 6. the tribunal’s workload, and 7. other factors

Outside influence

To hold that any “outside” influence vitiates the validity of the proceedings or the decision reached is to insist on a degree of isolation which is not only totally unrealistic but also destructive of effective reason-writing.

Bias and Independence

Bias: counsel is connected with one of the partiesIndependence lost: compelled to consult with others, who are

not charged with the responsibility of deciding the case

A process that looks good

(i) A Committee member prepared the first draft of the reasons. (ii) Counsel, with the chairman of the Committee, revised and

clarified the first draft but did not write independently of that draft.

(iii) The Committee met to consider and revise the draft as amended by counsel and the chairman; counsel played no role in this review and revision.

(iv) The final product which emerged from the drafting process was signed by each member of the Committee.

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Legitimate Expectations

Bendahmane v. Canada (Min of E&I)1989 FCA

quoting Lord Fraser of Tullybelton in A-G of Hong Kong v. Ng Yuen Shiu

when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty.

Old St. Boniface Residents Assn. Inc. v. Winnipeg (City)1990 SCC

Consultation(Genesis of the discussion)

The principle developed in these cases is simply an extension of the rules of natural justice and procedural fairness. It affords a party affected by the decision of a public official an opportunity to make representations in circumstances in which there otherwise would be no such opportunity.

The court supplies the omission where, based on the conduct of the public official, a party has been led to believe that his or her rights would not be affected without consultation

Ref Re Canada Assistance Plan (B.C.)1991 SCCFeds limit payments to 5% growth

Limitations

No substantive rights: no support that the doctrine of legitimate expectations can create substantive rights.

Legislative: the rules governing procedural fairness do not apply to a body exercising purely legislative functions

Parliamentary government would be paralyzed if the doctrine of legitimate expectations could be applied…

Baker v. Min of Citizenship and Immigration1999 SCC


If the claimant has a legitimate expectation thata certain procedure will be followed, this procedure will be

required by the duty of fairness:a certain result will be reached in his or her case, fairness may

require more extensive procedural rights than would otherwise be accorded

An international treaty doesn’t necessarily give rise to legitimate expectations (but it could)

Mount Sinai Hospital Center v. Quebec (Min of Health and Social Services)2001 SCC

Binnie(minority, concurring in result)

“Probable direction for Legitimate Expectations” - McH

Legitimate Expectation is not Estoppel: an applicant who relies on the doctrine of legitimate expectations may show, but does not necessarily have to show, that he or she was aware of such conduct, or that it was relied on with detrimental results. This is because the focus is on promoting “regularity, predictability, and certainty in government’s dealing with the public

Substantive: to give substantive relief, more demanding conditions precedent must be fulfilled than are presently required by the doctrine of legitimate expectation.

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Furey v. Conception Bay Centre Roman Catholic School Board1993 NF CA

School closed with no promised consultation

First 3 requirements

1. Procedural only and no substantive rights (Ref re CAP)2. No conflict with duty (A-G of Hong Kong)3. No legislative function (Ref re CAP)

2 new requirements(“Criticized” – McH)

To establish legitimate expectation:4. conduct (past actions or assurances) capable of giving rise

to an expectation …and 5. knowledge giving rise to a legitimate expectation

Elected body an elected body may be charged with both administrative powers and with delegated legislative powers.

Leg or admin?

Same as Peralta p. 37

A legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases;

Administrative act cannot be exactly defined, but it includes the adoption of a policy, the making and issue of a specific direction, and the application of a general rule to a particular case in

accordance with the requirements of policy or expediency or administrative practice

Apotex Inc. v. Canada (A-G)2000 FCA

Pierre H. Vincent “Rest assured that you will be consulted …”

Décary J.A says:

Legitimate Expectations in Minister’s Regulation Setting

it would not apply in the circumstances of this case:(a) because the alleged undertaking is at best a personal

undertaking of a political nature that is not enforceable in a court of law

(b) in any event, it is not an undertaking that binds the decision maker, i.e. the Governor in Council.

SalientOne would expect a true undertaking by a minister of the

Crown to be salient, to include some specifics as to the form and timetable of the consultation and to be given to all interested persons in some official form.

Who?

A minister can make an undertaking having some legal consequences only with respect to a decision which is his, and his alone to make

A minister can only bind the GIC if he has statutory authority or, authority expressly delegated

Obiter Dictaserious reservations as to the applicability of the doctrine of

legitimate expectations to Cabinet in the exercise of its regulation-making power

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http://www.canlii.org/ca/cas/fca/2000/2000fca10190.html


Emergencies

Walpole Island First Nation1996 Ont Div Ct

waster water needs to be

released

emergencies call for immediate and sometimes drastic action

Bertram S. Miller Ltd v The Queen1986 Fed CA

“emergency situations”: situations in which prompt action may be required.

In such situations a warrant is not necessary for a “seizure” if such a seizure is authorized by statute and the terms of that statute are in themselves reasonable.

Regulations Cannot give more power to Minister than the statute

Kuypers v Langley 1992 BC SC

Deference to a subordinate government

if there are circumstances before the Council from which it might reasonably be concluded that a sudden and unexpected event is about to take place with respect to which the Council deems it necessary to use its emergency powers, which are within undelegated powers of the Provincial Government, it is not for the Court to say such facts do not exist, as the Court cannot control the proper exercise of a legislative discretion by a subordinate government.

No artificial jurisdiction

unfounded “sudden and unexpected occurrences” cannot “be artificially created or facts distorted to sanction the adoption of powers which have not been heretofore granted to the Municipality”

Effect of Breach of Proc RequirementsCardinal and Oswald v. Director of Kent Institution1985 SCCno reasons for refusal to release from solitary

EmergencyIn view of the urgent or emergency nature of the decision

there could be no requirement of prior notice and hearing (re first decision)

If no fair hearing, no

decision

the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the

hearing would likely have resulted in a different decision.

Newfoundland Telephone Co.1992 SCC

Consequences: the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision

Void not voidable – right to process, not substance

WaiverRe A-G of Manitoba and

Acquiescence Generally speaking, when the question of fairness is involved, if the procedure adopted is acquiesced in by a party

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http://www.canlii.org/bc/cas/bcsc/1992/1992bcsc10029.html


National Energy Board 1974 Fed Ct

with that party’s full knowledge, then that party is in a disadvantageous position to complain of the procedure so adopted

Eikelenboom v. Holstein Canada2004 NSCA 103

Express Waiver: Statement accepting processImplied Waiver: Acquiescence after earliest practicable

opportunity

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http://www.canlii.org/ns/cas/nsca/2004/2004nsca103.html


Substantive IssuesJurisdiction

The Constitution Act, 1867

Appointment of Judges

96. The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick.

Crevier v Attorney-General for Quebec1981 SCC

No Jurisdiction Review =

s. 96 Court

a provincially-constituted statutory tribunal cannot constitutionally be immunized from review of decisions on questions of jurisdiction. (because it would be a defacto s. 96 Court)

Butprivative clauses may, when properly framed, effectively oust

judicial review on questions of law and on other issues not touching jurisdiction.

Ref re Residential Tenancies Act1996 SCC

s. 96 courts

Only the transfer of powers found to be subsidiary to a valid administrative scheme or necessarily incidental to an otherwise intra vires legislative goal are allowed.

The Test: 3 Steps

(1) does the power conferred “broadly conform” to a power or jurisdiction exercised (not able to be exercised) by a superior, district or county court at (or about) the time of Confederation? (anywhere in Canada or the UK)

(2) if so, is it a judicial power? (3) if so, is the power either subsidiary or ancillary to a

predominantly administrative function or necessarily incidental to such a function?

Step 1: Broad Conformity

relevant factors in determining whether the involvement of an inferior court in a given jurisdiction was sufficiently shared: its geographic reach, pecuniary limitations, and the range of disputes it could determine. the percentage of the population which would have used the

inferior courts, and the frequency with which disputes amenable to their process

arosePushpanathan v Canada (Min Cit. Imm)1997 SCCRefugee with heroin

Jurisdiction = Correctness

a question which “goes to jurisdiction” is simply descriptive of a provision for which the proper standard of review is correctness Not the final word

This case deference should not be shown by courts to human rights tribunals with respect to “general questions of law”

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Chieu v Canada (Min Cit. Imm)2002 SCC

Statutory Interpretation

Misinterpreting the statute which confers jurisdiction is jurisdictional error

Kuypers v Langley 1992 BC SC

Deference to a subordinate government

if there are circumstances before the Council from which it might reasonably be concluded that a sudden and unexpected event is about to take place with respect to which the Council deems it necessary to use its emergency powers, which are within undelegated powers of the Provincial Government, it is not for the Court to say such facts do not exist, as the Court cannot control the proper exercise of a legislative discretion by a subordinate government.

No artificial jurisdiction

unfounded “sudden and unexpected occurrences” cannot “be artificially created or facts distorted to sanction the adoption of powers which have not been heretofore granted to the Municipality”

Douglas/ Kwantlen Faculty Assn. v. Douglas College1990 SCC

s. 24(1) Court of Competent Jurisdiction

s. 52 No problem – Obligation not to apply unconstitutional law

Disadvantages

it would go against the raison d’être of administrative tribunals --specialization, simple rules of evidence and procedure, speedy decisions.

lack the guarantee of independence of courts.

Advantages

the Constitution must be respected. a court will often be more expensive and time-consuming.administrative tribunals have the skills, expertise and

knowledge in a particular area which can with advantage be used to ensure the primacy of the Constitution.

Deference?constitutional determinations by arbitrators or other

administrative tribunals or agencies should, of course, receive no curial deference

Cooper v CHRC1996 SCC

McL Questions of law must necessarily include Charter and Constitutional analysis

Lamer No, no, no – courts only

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http://www.canlii.org/bc/cas/bcsc/1992/1992bcsc10029.html



Mooring v. Canada (National Parole Board)1996 SCC

Evidence that violates s. 7 used in Parole Board hearing

s. 24(1)(from Mills)

a court or tribunal will only be a “court of competent jurisdiction” where the body in question has jurisdiction over

1. the parties, 2. the subject matter, and 3. the remedy sought by the complainant (e.g. damages

Weber, injunction, exclusion of evidence (s. 24(2)); oversight orders as per Doucet-Boudreau)

24(2) If Remedy sought is exclusion of evidence and board lacks power to exclude evidence, no jurisdiction over remedy

No power to exclude

evidence?

(i) the structure and function of the Board inquisitorial, not adversarial no subpoena power may have no legal training

(ii) the language of the Board’s constituting statute requirement to consider “all relevant information”

Fairness Duty

The Parole Board must ensure that the information upon which it acts is reliable and persuasive.

information extracted by torture could not be considered reliable by the Board

where incriminating statements are obtained from the offender, the law of confessions based on an admixture of reliability and fairness will be pertinent although not binding. The Board may, in appropriate circumstances, conclude that reliance on a coerced confession is unfair.

Decisions concerning s. 24(2) of the Charter will also be relevant to the Board’s final decision. However, cases decided under s. 24(2) should not be determinative of the Board’s decision to exclude relevant information based on the principles of fairness

As a statutory tribunal, the Board is also subject to the dictates of s. 7 of the Charter. In this regard, it must comply with the principles of fundamental justice in respect to the conduct of its proceedings. This does not mean that it must possess or exercise a power to exclude evidence that has been obtained in a manner that contravenes the Charter.

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Nova Scotia (WCB) v. Martin2003 SCC

s. 52Test?s of Law

Chronic pain treated differently from other disabilities

Not bindingA determination by a tribunal that a provision of its enabling

statute is invalid pursuant to the Charter is not binding on future decision-makers

(1) questions of law:

Does the administrative tribunal have jurisdiction, explicit or implied, to decide questions of law arising under the challenged provision.

(2) Explicit or Implicit

Jurisdiction

(a) Explicit jurisdiction must be found in the terms of the statutory grant of authority.

(b) Implied jurisdiction must be discerned by looking at the statute as a whole. Relevant factors will include the statutory mandate of the tribunal in issue and whether

deciding questions of law is necessary to fulfilling this mandate effectively;

the interaction of the tribunal in question with other elements of the administrative system;

whether the tribunal is adjudicative in nature; and practical considerations, including the tribunal’s capacity to

consider questions of law. {Practical considerations, however, cannot override a clear implication from the statute itself.}

(3) Charter Presumption

If the tribunal is found to have jurisdiction to decide questions of law arising under a legislative provision, this power will be presumed to include jurisdiction to determine the constitutional validity of that provision under the Charter.

(4) Rebuttal

The party alleging that the tribunal lacks jurisdiction to apply the Charter may rebut the presumption by

(a) pointing to an explicit withdrawal of authority to consider the Charter; or

(b) convincing the court that an examination of the statutory scheme clearly leads to the conclusion that the legislature intended to exclude the Charter

the Board’s own view is not determinative of its jurisdictionRe Keeprite Workers’ 1980 Ont CA

Absence of evidence

absence of evidence [for a decision] may properly be characterized as jurisdictional error.

Newfoundland Telephone Co1992 SCC

A failure of the duty of fairness, renders a decision void not just voidable, equivalent to no jurisdiction

Central Ont Coalition No Notice No Notice = No jurisdiction

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Review of Exercise of DiscretionJudicial Review Procedure ActRSO 1990

Baker v. Min of Citizenship and Immigration1999 SCC

Definition

Discretion refers to decisions where the law does not dictate a specific outcome, or where the decision-maker is given a choice of options within a statutorily imposed set of boundaries.

Review Grounds

Traditionally, decisions classified as discretionary may only be reviewed on limited grounds such as the bad faith of decision-makers, the exercise of discretion for an improper purpose, and the use of irrelevant considerations [i. wrong considerations,

ii. ignoring right factors (insufficient weighing of factors usually within discretion)]

Abuse of Discretion

Roncarelli v Duplessis1959 SCC

Related to purpose

the discretionary power … must be related to the administration and enforcement of that statute.

No absolute discretion

In public regulation of this sort there is no such thing as absolute and untrammelled “discretion”, that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator;

no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power, exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute

Based Decision to be based on considerations pertinent to situation.

Irrelevant ConsiderationsThorne’s Hardware Ltd v the Queen1983 SCCGIC extends St. John Harbour to include Irving’s shipyard

Egregious CaseAlthough, the possibility of striking down an Order in Council

on jurisdictional or other compelling grounds remains open, it would take an egregious case to warrant such action.

Motives?

It is neither our duty nor our right to investigate the motives which impelled the federal cabinet to pass the Order in Council

Governments do not publish reasonsGovernments may be moved by any number of considerations

Look at evidence of motive?

not for the purpose of canvassing the motivesbut to show that the issue was one of policy; and not jurisdiction

UnreasonableRe Sheehan and Criminal Injuries Comp

“the Board may have regard to

all such circumstances as it considers

such a broad conferring of the power to act on what the Board considers relevant would not extend to authorize the Board to make relevant a consideration which is patently irrelevant, simply by the act of the Board expressing that it considers it

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http://www.e-laws.gov.on.ca/DBLaws/Statutes/English/90j01_e.htm



Board1974 Ont CA

relevant” to be relevant

But if it was “all relevant factors” the court could interfere

Shell Canada Products Ltd. v. Vancouver (City)1994 SCC

Intra Vires

Municipalities are entirely the creatures of provincial statutes. Accordingly, they can exercise only those powers which are explicitly conferred upon them by a provincial statute

the exercise of a municipality’s statutory powers, whatever the classification, is reviewable to the extent of determining whether the actions are intra vires.

Reasonable?Rogers v. City of Toronto (1915), 33 O.L.R. 89 stands for the

proposition that the courts cannot assess the reasonableness of a particular exercise of municipal power.

Purposes

Generally, a municipal authority is authorized to act only for municipal purposes

general sections found in most municipal Acts: must be construed subject to the limitations imposed by the purpose of the statute as a whole. Any powers implied from their general language must be restricted to municipal purposes

Mount Sinai Hospital Center v. Quebec (Min of Health and Social Services)2001 SCC

Reality of the SituationBastarache(for the majority)

Once discretion exercised, it cannot be reversed by “a vague and ungrounded” concern behaviour that is inconsistent with the reversal

Discretion can be reversed by a legitimate change in government policy

policy concern invoked in such circumstances must be legitimate. At the very least, it must correspond to the reality of the situation.

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Gregson v National Parole Board1982 FC

Fettering Boards may not limit the factors considered in their discretion from those allowed by statute

Fettering with Binding Guidelines

Ainsley Financial Corp. v. Ontario (Securities Commission)1994 Ont CA

Policy Statement 1.10 is awfully detailed

Guidelines are okay

regulators may, without any specific statutory authority for doing so, issue guidelines and other non-binding instruments

But

A non-statutory instrument cannot have effect in the face of contradictory statutory provision pre-empt the exercise of a regulator’s discretion impose mandatory requirements enforceable by sanction; i.e.

the regulator cannot issue de facto laws

Is it a guideline or a de facto

law?

Format of the statement: Guidelines connote general statements of principles,

standards, criteria or factors intended to elucidate and give direction.

de facto law: minutely detailed regime complete with prescribed forms, exemptions from the regime, and exceptions to the exemptions.

Content: linkage between the power to sanction and the practices set out

Improper Delegation Who? #1

Re Peralta and the Queen in Right of Ontario et al1985 Ont CA

S.I. Rule A delegate cannot subdelegate

Subdelegationlegislative authority: requires explicit authorityadministrative authority: implicitly allowed

Admin / Leg difference

A legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases;

an administrative act cannot be exactly defined, but it includes the adoption of a policy, the making and issue of a specific direction, and the application of a general rule to a particular case in

accordance with the requirements of policy or expediency or administrative practice

Who #2Consolidated-Bathurst 1990 SCCPanel discusses issues w board

Independencethe criteria for independence are not absence of influence but

rather the freedom to decide according to one’s own conscience and opinions

Consultation okay if

factual issues are not discussed at a full board meeting and the parties are given a reasonable opportunity to respond to

any new ground arising

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RemediesAppeals

Only exist by right of statute“An appeal lies” means no leave requiredAppeal is generally more broad than Judicial Review

Molson Breweries v. John Labatt Ltd2000 FCA

Statute allows appeal to Federal Court with new evidence

No new evidence

a customary appeal provision: an appellate court decides the appeal on the basis of the record before the court whose decision is being appealed.

deference on fact findings

An appeal under section 56 involves, at least in part, a review of the findings of the Registrar. In conducting that review, because expertise on the part of the Registrar is recognized, decisions of the Registrar are entitled to some deference

Additional Evidence = all new conclusion

However, where additional evidence is adduced in the Trial Division that would have materially affected the Registrar’s findings of fact or the exercise of his discretion, the Trial Division judge must come to his or her own conclusion as to the correctness of the Registrar’s decision

Judicial Review – the Prerogative Writs

Common Law

Certiorari

Quash or “set aside” lower court decisionIf a reviewable error on face of decisionAdministrative, not legislative (Vancouver Island Peace

Society see. p. 3)

Habeus Corpus

Requirement to produce a person so court can determine justification grounds for detention [JRPA s.11(2);

Prohibition Preventing an act by a decision maker

Mandamus “We order” Difficult to get (Apotex 1993)

Quo Warranto

By what authority decision maker is actingUsed to remove decision maker, rare, Wheeler

Declaration declaration as to what the law is.

Injunction most dealt with under prohibition or mandamus.

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Mandamus


1. There must be a public legal duty to act2. The duty must be owed to the applicant

3. There is a clear right to performance of that duty, in particular: (a) the applicant has satisfied all conditions precedent giving rise to the duty; (b) there was (i) a prior demand for performance of the duty;

(ii) a reasonable time to comply with the demand unless refused outright; and (iii) a subsequent refusal which can be either expressed or implied, e.g.

unreasonable delay

4. Where the duty sought to be enforced is discretionary, the following rules apply:

(a) in exercising a discretion, the decision-maker must not act “unfairly”, “oppressively” or demonstrate “flagrant impropriety” or “bad faith”;

(b) mandamus is unavailable if the decision-maker’s discretion is characterized as being “unqualified”, “absolute”, “permissive” or “unfettered”;

(c) in the exercise of a “fettered” discretion, the decision-maker must act upon “relevant”, as opposed to “irrelevant”, considerations;

(d) mandamus is unavailable to compel the exercise of a “fettered discretion” in a particular way; and

(e) mandamus is only available when the decision-maker’s discretion is “spent”; i.e., the applicant has a vested right to the performance

5. No other adequate remedy is available

6. The order sought will be of some practical value or effect:

7. The Court in the exercise of its discretion finds no equitable bar to the relief sought

8. On a “balance of convenience” an order in the nature of mandamus should (or should not) issue if

(a) the administrative cost or chaos would be obvious and unacceptable(b) potential health and safety risks outweigh an individual’s right to pursue

personal or economic interests

Mount Sinai Hospital Center2001 SCC

Prior exercise = mandamus

Where the Minister has failed to act in accordance with a prior exercise of his discretion, the criteria for the issuance of an order of mandamus are met

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Quo Warranto

New Brunswick v. Wheeler1979 SCC

expiry

It is said that an application in quo warranto expires with the authority of the office holder whose right to serve is challenged by the writ. There is some support for this proposition.

Following a re-election, a renewal of the application is not required

Why?The sanctity of these offices and the strict adherence to the

conditions of occupying those offices must be safeguarded if democratic government is to perform up to design.

And…

Enactments as they are brought before the courts in applications in quo warranto and otherwise, must be given their full application according to law. whether or not there be any moral deficiency or the business at hand, was conducted openly.

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s.6(1) by right

s.6(2) leave in

emergency

s.6(3) no leave may

transfer

s.6(4) leave if urgent


Statutory Judicial Review

Judicial Review Procedure Act, RSO 1990

s. 1“statutory

power”

“statutory power” means a power or right conferred by or under a statute,

(a) to make any regulation, rule, by-law or order, or to give any other direction having force as subordinate legislation,

(b) to exercise a statutory power of decision,(c) to require any person or party to do or to refrain from

doing any act or thing that, but for such requirement, such person or party would not be required by law to do or to refrain from doing,

(d) to do any act or thing that would, but for such power or right, be a breach of the legal rights of any person or party;

s. 1“statutory power of decision”

“statutory power of decision” means a power or right conferred by or under a statute to make a decision deciding or prescribing,

(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or {legal qualifies all – Bezaire}

(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not,

and includes the powers of an inferior court.s. 2 Applications for judicial review

2. (1) …, the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following:

1. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.

2. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.

Error of law (2) The power of the court to set aside a decision for error of law … is extended … to the extent it is not limited or precluded by the Act conferring such power of decision.

Lack of evidence (3) Where … there are no such facts to support findings of fact made by the tribunal in making a decision … the court may set aside the decision

Power to set aside(4) Where …entitled to a judgment declaring that a decision made in the exercise of a statutory power of decision is unauthorized …, the court may, in the place of such declaration, set aside the decision.

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Court of Appeal

Admin Body

Div Ct3

members

S.C.J




Federal Courts ActRSC 1985 s.2

“federal board, commission or other tribunal”

any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than the Tax Court of Canada or any of its judges, any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under s. 96 of the Constitution Act, 1867

s.2 “relief”

“relief” includes every species of relief, whether by way of damages, payment of money, injunction, declaration, restitution of an incorporeal right, return of land or chattels or otherwise;

18. (1)Extraordinary

remedies, federal

tribunals

(excl. juris. cannot remove

right to consider constitutionality of statute from s.

96 courts)

18. (1) Subject to s. 28 (list of boards that go to FCA), the Federal Court has exclusive original jurisdiction

(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and

(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the A-G of Canada, to obtain relief against a federal board, commission or other tribunal.

18.1 (1) An application for judicial review

18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought {matter is broad, not just a decision}.

Time limit 18.1 (2) 30 days

Powers

18.1 (3) On an application for judicial review, the Federal Court may

(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; {mandamus}or

(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.

Grounds of review

18.1(4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal

(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;

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http://laws.justice.gc.ca/en/F-7/

http://laws.justice.gc.ca/en/F-7/


(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;

(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;

(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;

(e) acted, or failed to act, by reason of fraud or perjured evidence; or

(f) acted in any other way that was contrary to law.

18.1(5) Defect in form or technical irregularity

If Appeal, no Judicial Review

18.5 Despite sections 18 and 18.1, if an Act of Parliament expressly provides for an appeal …, that decision or order is not, to the extent that it may be so appealed, subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with, except in accordance with that Act.

28.(1) List of boards that go to FCA first. (supp 567) does not include IRB, HRC

Mount Sinai Hospital Center 2001 SCC

No Extraordinary

Remedies?

Although the QC Civil Code s. 100 provides that extraordinary remedies are not generally available against the Crown, this rule does not apply in circumstances where the Minister acts outside the limits of his competence

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Standing

At Appeal

General Rule If you are a party to the original decision you have the right to appeal, otherwise not

IntervenerMay be granted appeal right when granted intervener statusWhen not granted, court has discretion

If you win No right to appeal, even if you win for the wrong reasons (same for JR)

Judicial Review Direct Interest {FCA s. 18.1 doesn’t exclude Pub. Interest}

Re Rothmans 1976 FCA

Direct Interest to have standing you must “have a genuine grievance”

Competitive Advantage?

A person should not have the right to interfere with or meddle in official action affecting an existing competitor for the sole purpose of preventing that competitor from obtaining some advantage, particularly where .. the person complaining is free to take advantage...

The public interest in competition must be borne in mind in whether to recognize standing in a competitive relationship.

Finlay v. Canada (Min of Finance)1986 SCCWelfare clawbacks challenge to Fed transfer payments

Challenge legislation?

1 sufficient personal interest in the legality [of the legis’n]?2 If not, public interest standing?

Personal Interest?

1. where the interference with the public right is such that some private right of his is at the same time interfered with

2. where the plaintiff, in respect of his public right, suffers special damage peculiar to himself

Special Damage

exceptionally prejudiced by the wrongful act as it accrues in cases of nuisance on proof that he is more particularly affected than other people beyond the general interest that is common to all members of the relevant society

“Nexus”the plaintiff must have a personal stake in the outcome of the

litigation--that is, stand to benefit in his personal interests from the relief sought

Reasons for not granting public interest standing

allocation of scarce resources; screen out the mere busybody; contending points of view of those most directly affected; and role of the courts and their constitutional relationship to the

other branches of government

Public Interest Requirements

Extend to Admin

(1) the issue before the court is justiciable (e.g not royal prerogative);

(2) the issue is serious and the applicant has a genuine interest, (scarce resources, busybody) and

(3) there is no other reasonable and effective manner for the issue to be brought before the court.

Reese v. Alberta c. Reasonable (c) there was no person with a more direct interest who 2023-05-24



(Min of Forestry, Lands and Wildlife)1992 AB QB

Manner would be likely to raise the issue as promptly.

Genuine Interest

it would be open to the court to recognize (c), that the applicant has a “genuine interest” if all other elements present not inconsistent with the inherent nature of the statutory

processinferred if the statute clearly contemplates that the applicant

has a role in the process leading up to the administrative act

Canadian Council of Churches v the Queen1992 SCC

(3) there is no other reasonable and effective manner for the issue to be brought before the court.

Private litigantThe granting of public interest standing is not required when,

on a balance of probabilities, it can be shown that the measure will be subject to attack by a private litigant.

Why standing? The whole purpose of granting status is to prevent the immunization of legislation or public acts from any challenge

Liberal & Generous

when exercising the discretion the applicable principles should be interpreted in a liberal and generous manner.


Mandamus The duty must be owed to the applicant:maybe also to the public

duty in question owed to the public at large rather than the individual applicant?

I am, for my part, inclined to think that with the addition of the Finlay case, the jurisprudence does not clearly exclude the possibility of extending standing to a proceeding in mandamus where there is public interest to be expressed and there is no other reasonable way for it to be brought to court. Desjardins J.A. in Distribution Canada v. M.N.R

for another day

Whether the “balance of convenience” test (part 8) may be employed as an ostensive vehicle by which standing requirements may be further relaxed I leave for another day.

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Standard of ReviewStein v. The Ship “Kathy K”

Court standardLaw: Correctness Fact: “palpable and overriding error” or “clear and obvious”

(applies to Admin, see Southam)Admin Tribunals

Deference on law because of 1. Expertise and 2. Resource efficiency but…

Bell v Ont HRC1971 SCC

is apt self-contained? A decision that goes to jurisdiction must be correct

CUPE Local 63 v New Brunswick Liquor Corp1979 SCC

are ‘managers’ ‘employees’?

patently unreasonable interpretation of statute exceeds jurisdictionA privative clause cannot prevent a review on jurisdictionLook at privative clause to see whether legislature wants tribunal

to determine what is in jurisdiction

Patently unreasonable:

1. ‘bad faith’2. consideration of irrelevant factors3. failure to consider natural justice4. misinterpretation

Bibeault1988 SCC

successor rights in labour contract

Exceed jurisdiction for error

the circumstances in which an administrative tribunal will exceed its jurisdiction because of error:

1 within jurisdiction, patently unreasonable2 legislative provision limiting its powers, mere error

pragmatic and functional analysis

1. the wording of the statute, 2. the purpose of the tribunal, 3. the area of expertise and 4. the nature of the question

This is what we have now, but role has changed

3 Advantages

1. Focuses the inquiry on the legislator’s intent rather than on interpretation of an isolated passage

2. The preliminary or collateral question theory emptied the concept of jurisdiction of its content

3. Rule of Law: an admin tribunal exceeding its jurisdiction is as serious as acting in bad faith or ignoring the rules of natural justice

National corn growers assn. 1990 SCC

Wilson (minority)

If the tribunal has not interpreted its constitutive statute in a patently unreasonable fashion, the courts must not then proceed to a wide ranging review of whether the tribunal’s conclusions are unreasonable.

Gonthier (Majority

Wording of statute with a privative clause, will the statute bear the interpretation? If not it is patently unreasonable.

Check for reasonableness at every step of the analysis.(In 1990, unreasonable = patently unreasonable)

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Pezim v. British Columbia (Superintendent of Brokers)1994 SCC

(patent not in judgment, but in headnote)

The central question = legislative intent

The central question in ascertaining the standard of review is to determine the legislative intent in conferring jurisdiction on the administrative tribunal.

In answering this question, the courts have looked at various factors. an examination of the tribunal's role or function. whether or not the agency's decisions are protected by a privative

clause. (also crucial) whether or not the question goes to the jurisdiction of the tribunal

(of fundamental importance)

additional bases for judicial deference:

Spectrum – Reasonableness to CorrectnessQuestion of law is within the tribunal’s area of expertise:

considerable deference is warranted

Canada (Director of Investigation and Research) v. Southam Inc1997 SCC

Statutory right of appeal

Type of question

Question of law: the potential to apply widely to many casesQuestion of Mixed Fact and Law: matrices of facts at issue so

particular, so unique, that decisions about whether they satisfy legal tests do not have any great precedential value

FactThe general rule that appellate courts should be reluctant to venture

into a re-examination of the factual conclusions of the trial judge applies with special force in a complex matter such as here.

less deference factors

Judges on the tribunal

A right of appeal and no privative clause means jurisdiction is not an issue

reasonable-ness

simpliciterthe middle standard

An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination.

a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. evidentiary foundation: assumption that had no basis in the

evidence, or that was contrary to the overwhelming weight of the evidence.

logical process contradiction in the premises or an invalid inference

The difference between

“unreasonable” and

“patently unreasonable”

lies in the immediacy or obviousness of the defect. If the defect is apparent on the face of the tribunal’s reasons, then

the tribunal’s decision is patently unreasonable. But if it takes some significant searching or testing to find the

defect, then the decision is unreasonable but not patently unreasonable.

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Pragmatic and Functional Approach

Leading Case

Pushpanathan v Canada (Min Cit. Imm)1997 SCC

Refugee with heroin

Jurisdiction = Correctness

a question which “goes to jurisdiction” is a provision for which the proper standard of review is correctness

(i)Privative Clauses and

Appeals

the presence of a “full” privative clause is compelling evidence that the court ought to show deference to the tribunal’s decision, unless other factors strongly indicate the contrary as regards the particular determination in question.

a clause in an Act permitting appeals: is a factor suggesting a more searching standard of review

(ii)Expertise of Tribunal

“the most important of the factors that a court must consider in settling on a standard of review {Iacobucci J. in Southam}

If a tribunal has been constituted with a particular expertise with respect to achieving the aims of an Act then a greater degree of deference will be accorded.

the Court is sometimes prepared to show considerable deference even in cases of highly generalized statutory interpretation where the instrument being interpreted is the tribunal’s constituent legislation

(iii)Purpose of the Act as a Whole, and the Provision in Particular

High standard: establishing rights as between parties, or as entitlements

Low standard: delicate balancing between different constituencies legal principles vague, open-textured, or involve a “multi-

factored balancing test” polycentric issue (one which involves a large number of

interlocking and interacting interests and considerations)

(iv)The “Nature of

the Problem”: A Question of

Law or Fact?

courts should be less deferential of decisions which are pure determinations of law.

In some cases, even where courts might not agree with a given interpretation, the integrity of certain administrative processes may demand that deference be shown to that interpretation of law.

the generality of the proposition decided will be a factor in favour of the imposition of a correctness standard.

This case“a serious question of general importance” = Correctnessdeference should not be shown by courts to human rights tribunals

with respect to “general questions of law”

Dr. Q.2003 SCC

pragmatic and functional approach rocks!

The term “judicial review” embraces review of administrative decisions by way of both application for judicial review and statutory rights of appeal. In every case where a statute delegates power to an administrative decision-maker, the reviewing judge must begin by determining the standard of review on the pragmatic and functional approach.

2023-05-24




Law Society of New Brunswick v. Ryan2003 SCC

Only 3 Standards

additional standards should not be developed unless there are questions of judicial review to which the three existing standards are obviously unsuited.

ExpertisePresence of lay members, familiarity with area can give expertise

beyond what judges have, even in areas that judges are very familiar

reasonable-ness

when deciding whether an administrative action was unreasonable, a court should not at any point ask itself what the correct decision would have been.

a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling

This does not mean that every element of the reasoning given must independently pass a test for reasonableness. The question is rather whether the reasons, taken as a whole, are tenable as support for the decision

patently unreason-able

a patently unreasonable defect, once identified, can be explained simply and easily, leaving no real possibility of doubting that the decision is defective.

“clearly irrational” or “evidently not in accordance with reason” so flawed that no amount of curial deference can justify letting it

stand.

C.U.P.E. v. Ontario (Min of Labour),2003 SCC

Minister appoints retired judges to Labour tribunals

Ignoring a necessary factor in a decision is patently unreasonable

procedural fairness: for courts, no deferenceMinister's discretionary power subject to subject to pragmatic and

functional approach analysis – generally “patently unreasonable”

some of the same "factors" that are looked at in determining the requirements of procedural fairness are also looked at in considering the "standard of review"

United Taxi Drivers’ 2004 SCC

Municipal Jurisdiction = Automatic correctness

Municipalities’ jurisdiction: Such a question will always be reviewed on a standard of correctness:

There is no need to engage in the pragmatic and functional approach in a review for vires; such an inquiry is only required where a municipality’s adjudicative or policy-making function is being exercised.

2023-05-24

Raises the bar for

complex areas of law






Toronto (City) v. C.U.P.E., Local 792003 SCC

Automatic correctness

the expert skill and knowledge which an arbitration board exercises in interpreting a collective agreement does not usually extend to the interpretation of “outside” legislation. The findings of a board pertaining to the interpretation of a statute or the common law are generally reviewable on a correctness standard

An exception to this rule may occur where the external statute is intimately connected with the mandate of the tribunal and is encountered frequently as a result.

Lebel on Reasonable-ness

There’s no real difference between unreasonable and patently unreasonable, and if there is, there probably shouldn’t be

Should courts move to a two standard system of judicial review, correctness and a revised unified standard of reasonableness?

Should we attempt to more clearly define the nature and scope of each standard or rethink their relationship and application?

Irrational = clearly irrational, etc.1. Magnitude of Defect – leads to conclusion that both simpliciter

and patent are the same2. Immediacy of Defect – how much probing is “somewhat

probing” – (Southam –moved to magnitude after detection)

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DamagesRoncarelli v Duplessis1959 SCC

“exercise of his functions”

QC Civil Code s. 100 that says: “No public officer or other person fulfilling any public function or duty can be sued for damages” is no bar on damages if the conduct was not “in the exercise of his functions.”

Immunity? No immunity for bad faith

Finney v. Barreau du Québec2004 SCCBad lawyer not disbarred by the barreau

immunity provision

prohibits prosecutions of professional orders and their officers and staff for acts engaged “in good faith in the performance of their duties”

Bad Faithintentional fault orserious carelessness or recklessness. Gross or serious carelessness is incompatible with good faith.

Common law civil liability

The common law would have been no less exacting than Quebec law on this point.

Charter Damages

s. 24(1) …such remedy as the court considers appropriate and just in the circumstances.

Rare

Allows for damage awards, have seen few casesGenerally look to recovery under torts if availables.7 may provide procedural protection, damages in theory, e.g.

perhaps for solitary confinement?

2023-05-24



Discretion of Courts

Harelkin v. University of Regina1979 SCCSocial worker gets low GPA takes expulsion to the SCC instead of going for faculty appeal

“Prerogative” certiorari and mandamus are discretionary remedies by nature

Test for discretion

The court is entitled to refuse certiorari and mandamus to applicants if

they have been guilty of unreasonable delay or misconduct or if an adequate alternative remedy exists {P.P.G. Industries Canada

Ltd}And is almost forced to exercise them when there is a breach of jurisdiction fundamental justice

Right of appeal

Assume that that the body of superior jurisdiction will give justiceUnless the unfair finding will be carried forward

Policy The courts should not use their discretion to promote delay and expenditure unless there is no other way to protect a right

Matsqui Indian Band et al. v. Canadian Pacific Ltd. et al1995 SCC

“Adequate” The “adequate alternative remedy” must be adequate, e.g. no perception of bias.

Other Grounds for refusing Certiorari

Waiver (Eikelenboom v. Holstein Canada, 2004 NSCA) “whether the issue was raised at the earliest opportunity.” Jurisdiction, voidness Look for no acquiescence

Delay/Laches Federal Courts Act s.18.1 (2) - 30 days JRPA no set time, but… years?

Unclean Hands – e.g. tainted by a fraud perpetuated by claimantMootness

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http://www.canlii.org/ns/cas/nsca/2004/2004nsca103.html




Collateral Attack

Avoiding a consequence of a ruling

the rule against collateral attack: a judicial order pronounced by a court of competent jurisdiction should not be brought into question in subsequent proceedings except those provided by law for the express purpose of attacking it

R. v. Consolidated Maybrun Mines Ltd1998 SCCMine guys don’t clean up PCBs etc.

The rationale behind the rule

to maintain the rule of law and to preserve the repute of the administration of justice.

To allow parties to govern their affairs with certainty. “the orderly and functional administration of justice”

Test

inquire into the legislature’s intention for the purpose of determining the appropriate forum to decide whether an administrative order is valid

(1) the wording of the statute from which the power to issue the order derives;

(2) the purpose of the legislation [seeking quick results argues against CA];

(3) the availability of an appeal [argues against CA]; (4) the nature of collateral attack [fairness, etc. -> CA; involves

considerations that fall within the expertise and raison d’être of the appeal tribunal -> no CA]; and

(5) the penalty [≤$25,000 fine argues against CA, Jail time in favour of CA].

2023-05-24



Issue Estoppel

Danyluk v. Ainsworth Technologies Inc.2001 SCC

Ms. Danyluk not made aware of employers submissions in ESA claims held to tribunal results

Binnie

“Relitigation - Bad

Finality – Good

But courts have wiggle room”N. McH

Admin Tribunal

issue estoppel is available to preclude an unsuccessful party from relitigating in the courts what has already been litigated before an administrative tribunal

Policy reasons

Duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided.

Step 1:issue estoppel

(1) that the same question has been decided in earlier proceedings; (2) that the earlier judicial decision was final; and (3) that the parties to that decision or their privies are the same in

both the proceedings

Judicial decision

1. Was the administrative authority issuing the decision capable of receiving and exercising adjudicative authority? (rights determining)

2. Was the decision required to be made in a judicial manner? and

3. Was the decision made in a judicial manner? (based on findings of fact and the application of an objective legal standard to those facts; doesn’t include errors of substance or process)

Step 2: Discretion

a court must still determine whether, as a matter of discretion, issue estoppel ought to be applied

The objective: promotes the orderly administration of justice, but not at the cost of real injustice in the particular case.

court proceedings: discretion limited in application. administrative tribunals: broader

The list of factors … is open

1. the wording of the statute from which the power to issue the administrative order derives [Allowing court action argues against appeal],

2. the purpose of the legislation [Quick resolution argues against estoppel?],

3. the availability of an appeal [Argues for estoppel, especially automatic right],

4. the safeguards available to the parties in the administrative procedure [Evidentiary differences, procedural unfairness argue against estoppel],

5. the expertise of the administrative decision maker, 6. the circumstances giving rise to the prior administrative

proceeding [stress on claimant argues against estoppel] and, 7. the potential injustice, the most important factor, [would it be

unjust to allow the estoppel to operate here? Has the matter never been heard? Was there unfairness?]

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Abuse of Process

Toronto (City) v. C.U.P.E., Local 792003 SCC

Sexual assault conviction not recognized by labour board

Note:Evidence Act: Criminal conviction is proof of guilt

Abuse of Process

an attempt to relitigate a claim which the court has already determined

a variety of legal contexts: “the inherent power of the court to prevent the misuse of its

procedure, in a way that would . . . bring the administration of justice into disrepute”

Res Judicata Abuse of ProcessPolicy

where allowing the litigation to proceed would nonetheless violate such principles as

judicial economy, consistency, finality and the integrity of the administration of justice

relitigation okay?

instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example:

(1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively

impeaches the original results; or (3) when fairness dictates that the original result should not be

binding in the new context.circumstances in which the bar against relitigation, would create

unfairness: the stakes in the original proceeding were too minor to

generate a full and robust response, An inadequate incentive to defend, the discovery of new evidence in appropriate circumstances, or a tainted original process may overcome the interest in

maintaining the finality of the original decision [e.g. Fraud]

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Fairness............................................................................................................................................................2Judicial/Quasi-Judicial 2History 2Threshold 3

Content of the Duty of Fairness....................................................................................................................5Hierarchy of the Law.....................................................................................................................................6Bias and Impartiality.....................................................................................................................................7

Independence 10Hearings & the Constitution 12Hearings and the SPPA 15Notice 16Public Access 17Disclosure 18Oral Hearing 20Representation by counsel 22Cross-Examination 24Reasons for Decision 25Legitimate Expectations 27Emergencies 29Effect of Breach of Proc Requirements 29Waiver 30

Substantive Issues.........................................................................................................................................31Jurisdiction 31Review of Exercise of Discretion 35

Remedies........................................................................................................................................................38Appeals 38Judicial Review – the Prerogative Writs 38Statutory Judicial Review 41Standing 44Standard of Review 46

Damages.........................................................................................................................................................51Discretion of Courts.....................................................................................................................................52

Collateral Attack 53Issue Estoppel 54Abuse of Process 55



SEPQA v. Canada (CHRC)1989 SCC

Both the rules of natural justice and the duty of fairness are variable standards. Their content will depend on the circumstances of the case, the statutory provisions and the

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nature of the matter to be decided.

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Nicholson1978 SCC

Constable terminated

administrative or executive field: general duty of fairness

Coopers and Lybrand1978 SCC

judicial or quasi-judicial:

SPPA 3(1) hearing;

QC Charter

(1) Is there anything in the language … which suggests that a hearing is contemplated before a decision is reached?

(2) Are rights and obligations of persons afffected directly or indirectly by the decision?

(3) Is the adversary process involved? (4) Is there an obligation to apply substantive rules to a

specific case?

Knight v. Indian Head School Division no. 191990 SCC

The existence of a general duty of fairness depends on:

(i) the nature of the decision

No duty of fairness: legislative and

general preliminary nature

Duty of fairness: administrative and

specific final

(ii) the relationship between that body and the individual; and

(iii) the effect on the individual’s rights (only if the decision is a significant one and has an important impact)

Abrogation Statute: express language or necessary implicationContract: explicit or clearly implicit provision to the contrary

Vancouver Island Peace Society1991 FCC

What constitutes a

legislative decision?

(see Peralta for Admin def’n

p. 37)

discretionary decision; general in its application (usually, but not always); based on the exercise of judgment after assessing

factors of general policy, which lie outside the ambit of typical concerns or

methods of the courts: public interest and public convenience, morality, politics, economics, international obligations, national defence and security, or social, scientific or technical concerns.

Content

Baker 1999 SCC

what procedural rights the duty of fairness requires (not exhaustive)underlying all these factors

Not only must justice be done it must be seen to be done

1. nature of the decision and the process followed

2. nature of the statutory scheme

3. importance of the decision to the affected


5. choices of procedure made by the agency

Other factors may also be important, particularly when considering aspects of the duty of fairness unrelated to participatory rights.

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Re Energy Probe 1984 FCA

Bias nemo judex in causa sua: no person can judge a case in which he or she is party

National Energy Board1976 SCC

Degrandpre (Dissent) The

Gold Standard test:

“what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude.


Institutional Independence –

The Valente Factors

8. security of tenure:9. security of remuneration and 10. administrative control (sittings, timing, who sits, etc.)

Furey 1993 NF CA

First 3 requirements

11. Procedural only and no substantive rights (Ref re CAP)12. No conflict with duty (A-G of Hong Kong)13. No legislative function (Ref re CAP)

2 new req’s(“Criticized”)

14. conduct (past actions or assurances) capable of giving rise 15. knowledge giving rise to a legitimate expectation

Pushpanathan v Canada (Min Cit. Imm)1997 SCC

pragmatic and functional analysis

16. the wording of the statute, 17. the purpose of the tribunal, 18. the area of expertise and (Ryan – even in areas that judges

have familiarity)19. the nature of the question



SEPQA v. Canada (CHRC)1989 SCC

Both the rules of natural justice and the duty of fairness are variable standards. Their content will depend on the circumstances of the case, the statutory provisions and the nature of the matter to be decided.

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property law - geocities.ws€¦ · web viewcml2212a. admin law. fall 2004. based on the lectures...

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